Memorandum from Henry Knox

At a meeting of the heads of departments and the Attorney General yesterday in pursuance of you direction an equal division of opinion took place upon the question herein stated.

It appeared that certain privateers commissioned on the part of the French Nation by Mr. Genest at Charleston equipped and manned at that place partly by Citizens of the United States, have brought prizes taken from the British Nation into our ports.

The Question was — Shall these prizes be delivered up, according to the requisition of the of the British Minister?

The Secretary of State and the attorney general were against the restoration and the Secretary of the Treasure and the Secretary of War were for it. This being the case it was agreed that each person should submit the reasons for his opinion to the President of the United States.

It is to be premised that in discussing the subject generally the following pointes were unanimously agreed to.

First. That the Conduct of Mr. Genest in issuing Commissions within the United States was highly improper.

Secondly. That the equipping of privateers in any of the ports of the United States to cruise against any of the belligerent powers was incompatible with that neutrality which it was the duty of the United States to observe on this head

Thirdly. That the United States ought to take effectual measures to prevent a repetition of such conduct in future.

Fourthly[.] That measures should be taken to punish such Citizens of the United States as should be found to have entered on board of the said privateers.

It is to [be] observed that the highest duty of every nation is to take care of its own preservation and happiness. This duty may be qualified by the treaties and obligations b which the nation may have bound itself.

No stipulation however with France obliges us to permit that Nation to equip and man their privateers within the United States. The manning of privateers or inducing our Citizens to enter on board of them may be considered of the nature of foreign powers ininlisting men within the United States which would according to the laws of Nations be an high violation against our sovereignty even to such a degree as to justify a declaration of War unless satisfactory reparation be mad — Vattel is explicit upon this subject he says —in Book 3. Chapter 2d Section 15. “As the right of levying soldiers belongs solely to the nation, so no person is to enlist soldiers in a foreign country, without the permission of the sovereign, and even with this permission none but volunteers are to be enlisted; for the service of the Country is out of the question here and no sovereign has a right to give or sell his subjects to another. They who undertake to enlist soldiers in a foreign Country without the sovereign’s permission; and in general, whoever alienates the subjects of another violates one of the most sacred rights both of the prince and the State. It is the crime distinguished by the name of Plagiat or man-stealing, and accordingly is punished with the utmost severity in every policied State. Foreign recruiters are hanged immediately, and very justly, as it is not to be presumed that their sovereign ordered them to commit the crime; and if they did receive such an order they ought not obey it: their sovereign having no right to command what is contrary to the law of Nature. It is not I say apprehended that these Recruiters act by order of the sovereign and usually they who have practiced seduction only, or, if taken severely punished. If they have used violence and made their escape, they are claimed and the men they carried off demanded. But if it appears that they acted by order such a proceeding in a foreign sovereign is justly considered as an injury and as a sufficient cause for declaring war against him, unless he condescends to make suitable reparation. “

. Mr. Genest had no right to issue within our territories the aforesaid Commissions— Hence it would seem to follow conclusively that as far as relates to us, the operation of the said Commissions ought to be considered as null and giving no right to capture vessels and bring them into our ports for security.

If this should be the case, which it is according to my judgment it would appear to be the duty of the United States in order to avoid a participation in the war to endeavor that the prizes so captured and brought into our ports should be delivered up to their proper Owners.

In order to place this subject in a strong point of view let the following case be supposed.

That Mr. Genest should issue Commissions to certain persons to raise Troops and make incursions into Canada and East Florida who should return within the United States with prisoners and booty in order to secure the same — In this case it would seem that the United States would be bound to deliver up the booty and prisoners and punish the perpetrators of the incursions or render themselves an object of a just War.

Were the present case reversed and it supposed the British had fitted out privateers in the manner the French have done, and brought into our ports, a number of the French East Indiamen or other very valuable prizes — the justice of the United States, as well as the general feeling, would probably have constrained the government to interpose and endeavor to obtain a restoration of the prizes.

If so the French have no more right in the premises than the English, no such right having been stipulated by Treaty.

Hence it is the conviction of my mind that the prizes taken by the said privateers and brought is not our ports ought to be delivered up, That if it be not done, or an attempt mad for the purpose, we may justly be considered as having concurred in an injury to a friendly Nation, contrary to the professions of the Government and the laws of neutrality, and that our conduct in this respect may be the cause of Great Britain and the other belligerent powers declaring War against the United States. All which is humbly submitted to the President of the United States.